Collins v. Gee
| Decision Date | 07 March 1978 |
| Docket Number | No. 75-637,75-637 |
| Parties | Thomas COLLINS, Sr., Plaintiff-Appellant, v. De Witt GEE, Jr., a/k/a D. W. Gee and Elgie Gee, husband and wife, Defendants-Respondents. |
| Court | Wisconsin Supreme Court |
Max E. Geline, Milwaukee, on brief, for plaintiff-appellant.
Howard G. Brown and Shellow & Shellow, Milwaukee, on brief, for defendants-respondents.
The judgment entered on August 14, 1975, set aside a written stipulation of settlement and dismissed the plaintiff's wrongful-death action on the ground that the death of the plaintiff prior to judgment terminated the cause of action.
The action was brought by Thomas Collins, Sr., against De Witt Gee, Jr., and Elgie Gee for the wrongful death of Collins' son. The action was commenced by a summons and complaint, which were filed with the court on May 19, 1970. Trial on this action for wrongful death was to a jury. On July 14, 1971, the jury awarded the plaintiff damages in the sum of $10,139.
After motions after verdict, Judge Elmer Roller concluded that the damages were excessive. By order filed October 21, 1971 he gave the plaintiff, Thomas Collins, Sr., the option of accepting, within twenty-one days, a reduced judgment in the amount of $4,169 or a new trial limited to the issue of damages. The order further provided that, if the plaintiff exercised the option to accept the reduced sum, "judgment may be entered upon said verdict for said sum." The option to accept the reduced award was never exercised. Under the terms of the order, therefore, the plaintiff's only alternative was to proceed to a new trial on the question of damages only.
More than two years later, on December 26, 1973, the plaintiff moved to have the court schedule a trial on the damage issue. This apparently precipitated further negotiations on the question of damages, for, in February of 1974, counsel for the defendants proposed settlement. Defense counsel prepared a stipulation, which provided for the dismissal of the action upon payment to the plaintiff of the sum of $4,000. This stipulation was sent to the plaintiff's attorney on March 4, 1974.
Unbeknownst to defendants or their attorney, the plaintiff, Thomas Collins, Sr., died on February 6, 1974. During the course of the probate of Collins' estate, a special administratrix was appointed, and she was authorized by the probate court to sign the stipulation for the settlement of the action as proposed by defense counsel. Upon return of this stipulation, signed by the special administratrix, defense counsel learned, apparently for the first time, that the plaintiff Collins had died. He thereupon moved the trial court for an order dismissing the action for wrongful death on the ground that the cause of action under the wrongful death act (sec. 895.04, Stats. (1973)), was personal to Thomas Collins, Sr., and that it terminated with his death prior to judgment. In addition, he asked that the settlement stipulation executed by the defendants be set aside on the ground that it was executed in the belief that the plaintiff was alive to accept or reject it.
Judge Harold B. Jackson, the successor to Judge Roller, set aside the stipulation, because the plaintiff's death was a pertinent fact which was not known at the time of the defendants' submission of the stipulation. The court then dismissed the action, concluding that the plaintiff's cause of action for the wrongful death of his son terminated upon the death of the plaintiff.
The wrongful death act, in the parts pertinent to this action, provides:
Both the plaintiff and the defendants rely upon the last quoted sentence of sec. 895.04(2), Stats. That sentence states that, if a relative of the deceased who has brought an action dies before judgment in the action which he has brought, the relative next in order is entitled to recover for the wrongful death. It is conceded by both parties that, had Thomas Collins, Sr., exercised the option to accept judgment for the damages as reduced by the trial judge, and if judgment had been in fact entered prior to plaintiff's death, that judgment would be an asset of the estate of Thomas Collins, Sr., and his estate would have been entitled to collect on that judgment.
Although judgment was never entered, the attorney for the plaintiff argues that the order of the trial judge following motions after verdict was an interlocutory judgment; and because a "judgment," although interlocutory, had been entered, the cause of action did not abate, no other relative succeeded to the entitlement to recover, and the estate of the original plaintiff could, accordingly, enforce the stipulation of settlement.
We conclude that this contention is incorrect.
The order of the judge which gave the option to the plaintiff of accepting judgment for a reduced amount or having a new trial was not intended to be a judgment. It was denominated as an order. It was an appealable order under the rationale of Powers v. Allstate Ins. Co., 10 Wis.2d 78, 102 N.W.2d 393 (1960), and Lucas v. State Farm Mutual Automobile Ins. Co., 17 Wis.2d 568, 117 N.W.2d 660 (1962), but it did not conform with the statutory definition of a judgment. Sec. 270.53, Stats. (1973), provides:
It is true that, had the plaintiff elected to take the option for the reduced amount of damages, the order could be considered as a conditional order for judgment, i. e., the plaintiff, upon accepting the option for reduced damages, had the absolute right to a judgment which finally determined the rights of the parties in the action. That option was not exercised and was terminated by the twenty-one-day time limitation placed upon the...
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